Climate Litigation Needs to Become a Mass Movement

Europe is leading by example.

Things are not going well for the Earth. It goes well beyond the Trump administration’s decision to eventually leave the Paris Agreement and Scott Pruitt’s purge of the Environmental Protection Agency’s scientific experts. Even non-American efforts to curb climate change aren’t going so well: Newly released data from the World Meteorological Organization reveal a record increase in average global concentrations of CO2 between 2015 and 2016. The United Nations Environment Programme recently issued its annual synthesis report on the emissions gap, which is the difference between country-specific plans and reductions suggested by scientific consensus. One of the salient findings is that domestic carbon-reduction policies for the 168 countries that have ratified the Paris Agreement amount to just one-third of what is necessary to limit global temperature rise to the Paris boundary of “well below 2 degrees Celsius.”

Is readying our collective casebooks and heading for the courthouse actually the best solution? Litigation, after all, is typically an inefficient method of achieving policy reform. The flagship public-interest law efforts during the civil rights movement provide instructive lessons here, particularly when academics and activists are increasingly extending historical parallels between environmental protection and racial justice to climate change. Even where many of the necessary conditions for successful legal reform strategies are present—as with some of the landmark cases tried by NAACP lawyers—there is a strong argument that lawsuits constrained by narrow legal doctrines and limited remedies will rarely be able to produce the kinds of sweeping economic changes required to combat the approaching climate catastrophe.

And yet, even though the United Nations Framework Convention on Climate Change (the parent treaty to the Paris Agreement) was drafted 25 years ago, we still do not have coherent global or local plans to limit destructive warming. The Paris Agreement was certainly the right direction after international law’s failure to achieve binding targets, but bottom-up targets only work when national commitments are extremely ambitious. So, in sum, it seems that litigating to reform energy policy is both utterly inefficient and entirely necessary.

In sum, it seems that litigating to reform energy policy is both utterly inefficient and entirely necessary.

These climate cases are not new, but the types of claims at stake are changing. The first wave of momentous actions in the United States chiefly involved efforts by state governments to compel either the executive or private entities to take action, either by forcing agencies to regulate emissions or forcing companies to steadily abate them. Other legal actions by local interest groups and environmental nongovernmental organizations sought to make agencies take climate change into account in relation to species-specific issues, such as the effect of global warming on food security for grizzly bears. More recent American suits tend to tackle specific deregulation plans or administrative omissions and delays. Success rates for local issues vary, and they are a vital part of an effective mass litigation strategy. However, since an ambitious suit calling power companies to account was unanimously shot down in the Supreme Court in 2011, high-impact litigation efforts slowed considerably while temperature-rise projections accelerated. The early American cases failed to unify scientific narratives, the stories and voices of people affected by climate change, and opportune legal moments.

Climate litigation in other countries, however, tells a different story. Here, it is a story about seizing the law as a means of collective action instead of leaving an elite cadre of lawyers to represent the concerns of a few activists and scientists. That narrative begins with the Urgenda case. A Dutch NGO, headed by one of the professors who first suggested the 2 degrees Celsius target, enlisted almost 900 claimants and alleged that government action was insufficient. Urgenda argued, among other things, that even if the Dutch government was bound by EU emissions targets, commitment did not immunize them from legal liability resulting from human health risks posed by climate change. In 2015, the court ordered the government to cut its emissions by 25 percent by 2020. The argument advanced by Urgenda is particularly relevant in light of the new emissions-gap data—governments cannot rest on the laurels of existing targets to deflect the need for comprehensive action.

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Even still, the global impact of Urgenda is as much about the form and optics of litigation as the substantive arguments. Urgenda paved the way for multiclaimant lawsuits that highlight the importance of climate action by giving platforms to those who stand to suffer disproportionate harms. Put differently, this nascent wave of climate litigation is about forcing governments to see climate change as a collective human-rights issue and to take action that reflects the dire picture painted by scientists about climate risks to human health.

In Belgium, a lawsuit that closely mirrors Urgenda advertises that citizens can become claimants through their website in just two minutes. That case now has nearly 32,000 co-claimants. The NGO responsible for the claim, Klimaatzaak, has enlisted a range of celebrity ambassadors to bolster its legal campaign through social media.

In the United Kingdom, where I’m based and also the ancestral home of the American common law, our case at Plan B.Earth implores the British government to amend their carbon targets to reflect the need for a net-zero emissions policy. The claimants, aged 9–79, include a rabbi concerned about the imminent humanitarian crisis, university students scared for their future, and a supporter with Mauritian heritage who represents the risk of small island states being submerged. In parallel to Urgenda, the U.K.’s current targets fall short of what climate science tells us is necessary to stop dangerous warming.

These European suits bolster the case for unifying social movements mobilized around climate change with legal ones: We can fight political reluctance with grassroots legal actions around the globe. Environmental lawyers in the United States are not oblivious to this opportunity: Juliana v. United States broke new legal ground by enlisting youth plaintiffs, attempting to repurpose a Roman legal doctrine of contested historical provenance, and alleging a constitutional right to a stable climate. In the first rejection of the government’s argument to throw out that case, Judge Thomas Coffin referred to Urgenda as proof that courts can redress climate change.

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